Democracy, the Supreme Court, and our two constitutions.

Wallace Mendelson, my late great friend and mentor, was fond of saying that "no man is fit to govern another." (1) The idea has, no doubt, been voiced often and its force felt even more often in human history. Though, in our "age of expertise," its force seems to have been blunted for some of the reasons discussed herein. Nonetheless, the whole spirit of democracy is contained within that simple and true statement. Not just a particular form of democracy, but any political expression of the idea that human beings ought to be allowed some meaningful say in the decisions that determine how they are to live their lives. If this is true, then democracy is a moral requirement, not merely a political form.

Yet democracy is always and everywhere under attack. Even in the most democratic regimes of modernity, forces are constantly at work to undermine its underlying principles. These forces are not intermittent. They do not appear only when conditions are favorable and disappear when unfavorable. They are like the pathogens always present in the human body, always ready to spring and kill at any opportune moment. As Jean-Jacques Rousseau suggested, the forces of the corporate will, which is the interest of the government or the ruling elite, are always busy undermining the general will, which is the common good. (2) Why are these forces constantly at work? Because Lord Acton was right when he told us that power always tends to corrupt. (3) The arrogance of power is universal and is not confined to a historical period, party, region, institution or individual.

This means that, since governing requires the exercise of power, those who wield it will tend to be corrupted by it, not sometimes but always, and not because they are vicious or inept, but because governing others always, in the last analysis, requires more virtue than any human being can muster. This is true not only for generally acknowledged bad rulers, but for a Churchill, Lincoln, or Pericles as well. That is why the struggle for constitutional democracy is always and everywhere a struggle for heightened awareness of the limits of politics, law, and anyone's capacity to govern others. And it is why the preeminent virtue for anyone attempting to exercise power over others is humility, exemplified by Christ and the early Christians in their struggle with pagan Rome, and developed theologically and philosophically by the Fathers of the Church. For Saint Augustine, this virtue was the defining feature of the City of God, contrasting sharply with the leading feature of the prideful City of Man, and thus of all earthly government. (4) Christ concludes his warnings to the scribes and Pharisees by saying: "He who is great among you will be a servant to you. Whoever will exalt himself will be humbled and whoever will humble himself will be exalted." (5)

Fallen human nature ensures that those who wield power will almost always succumb to pride. They will forget the maxim that no man is fit to govern another. They will, at some point, think themselves fit. Once they begin to think themselves fit to govern others, determining for those others how they should live their lives, they will be well on their way to forgetting that people ought to have a meaningful say in the decisions that determine how they live their own lives. They will be on the road to Elitism. Elites have always concluded that ordinary people are incapable of governing themselves. Even so, however much a mess that ordinary people may make of the business of self-government, the fact remains that entitlement to rule cannot be taken from one on the basis of the intelligence quotient (IQ), experience, knowledge, or expertise of another. (6)

The threats to our constitutional democracy that we experience today are rooted in elitism, the belief that ordinary people are not really fit--and therefore are not entitled--to govern themselves, and that small groups of people "in the know"--whether scientific, technological, economic, political, legal, or academic elites--can do a better job and are therefore entitled to do the governing for the rest of us.

The threats come from everywhere and from all directions, but as the theme of this symposium is the role of the judge in the Anglo-American legal tradition, I want to focus in the remainder of this essay on what I consider one of the gravest threats of all: the rise of federal judicial supremacy in America. We now live under a regime in which the federal courts have established a virtually unchecked monopoly in the field of constitutional interpretation. Since federal constitutional law authorizes and circumscribes virtually every corner of the public policy arena, those leaders whose authority most closely approaches the absolute power warned of by Lord Acton and thus who are most in need of the virtue of humility--the awareness of their essential unfitness to govern others--are federal judges, particularly the justices of the United States Supreme Court. Such awareness has not been evident during the past several decades.

The consequences of federal judicial supremacy were exemplified recently and most dramatically in the United States Supreme Court's 5-4 decision in Obergefell v. Hodges, in which the Court ruled that state laws defining marriage as a bond between one man and one woman violated the Fourteenth Amendment of the Constitution. (7) This decision overturned a legal tradition so long established that its origin is rightly regarded as "time out of mind." Chief Justice Roberts, dissenting from the ruling, warned that, despite the many things that might be celebrated in the decision, one should not "celebrate the Constitution, [for] [i]t had nothing to do with it." (8)

Though it probably will not seem so to most people nowadays, this should be viewed as a rather shocking statement. In it, the Chief Justice of the United States declares that his Court has just made a world-historic constitutional decision that has nothing to do with the Constitution! If it does not seem like a shocking statement, perhaps it is because the very same could plausibly be said of dozens of Supreme Court decisions handed down during the past half-century. So it is time to catch a breath and take stock of where we really are in the process of American constitutional development. To accomplish this, and to see how we got from the Founders' Constitution to Obergefell, some historical perspective is needed.

JUDICIAL SUPREMACY AND THE CONSTITUTION

The first thing that needs to be done is to distinguish judicial supremacy from judicial review. Although modern judicial supremacy is often regarded as a development of judicial review, they are not the same thing. Indeed, they are not even the same kind of thing. Constitutional judicial review is simply the authority of a court (any court) to disregard an otherwise applicable law in the decision of a particular case, when it determines that law to be incompatible with an applicable constitutional provision. As such, judicial review is a normal part of the judicial function and is a power possessed by any court with authority to apply constitutional law in the decision of cases and controversies. On the other hand, federal judicial supremacy, as it is presently understood, refers to the power of federal courts--the Supreme Court in particular--to issue binding, conclusive proclamations on the meaning of all provisions in the United States Constitution. To put the matter in the language of modern political correctness, judicial review is "inclusive" (all courts have it), while judicial supremacy is "exclusive" (only the Supreme Court has it in the last analysis).

But the Constitution is very clear on the judicial role, and it does not authorize judicial supremacy. Judicial supremacy is an unwarranted extension of the power of judicial review--a power that allows the Court to disregard or invalidate laws in a limited range of cases. To see this clearly, we need to take a closer look at some of the Constitution's key provisions.

As is well known, the Constitution establishes three main branches of national government. In Article I, Section 8, specific lawmaking duties are assigned to Congress, and in Article II, Sections 2 and 3, presidential duties are assigned. (9) Judicial duties are assigned to the Supreme Court--and lower federal courts that Congress chooses to establish--in Article III, Section 2. (10) The judicial power is precisely stated to be the power to decide cases arising under the Constitution, laws, and treaties of the United States. (11) This means that decisions of federal courts applying federal laws are binding on the parties to the lawsuits that are decided by the courts according to those laws. What it does not mean is that the decisions of these courts become laws in their own right or policies in the legislative sense.

After assigning powers to the national government, the Constitution then places some limitations on how national and state power can be exercised. This is done primarily in Article I, Sections 9 and 10. After the Constitution was adopted, the First Congress proposed ten amendments, which became part of the Constitution in 1791. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government. The final article in the Bill of Rights is the Tenth Amendment, which reserves to the states all powers not assigned to the nation or denied the states. Certain powers granted to the nation are not denied the states and can therefore be exercised by both the nation and the states. These are usually referred to as "concurrent" powers.

When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation. State judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends...